United States District Court
For the District of Utah
Central Division
Krystal Etsitty,
Plaintiff,
vs.
Utah
Transit Authority, et al.,
Defendant.
Case No.
2:04CV616 DS
2005 WL 1505610
2005 U.S. Dist. Lexis 12634
11 Sex. Har. Litig. Rptr. #07
June 24, 2005, Decided
David Sam, Senior Judge.
ORDER
I. Introduction
Plaintiff Etsitty filed suit
against her former employer, Utah Transit Authority (UTA) and Betty Shirley,
Director of Operations (Ms. Shirley), alleging that the Defendants terminated
her employment on the basis of her gender non-conforming conduct and/or her status
as a transsexual, in violation of Title VII and the Equal Protection Clause of
the United States Constitution. Each party has filed a Motion for
Summary Judgment, both of which are now fully briefed.
II. Factual
Background
The relevant
facts of the case are straightforward and basically undisputed. Plaintiff is a
transsexual who has been diagnosed with “Gender Identity Disorder.” From the
time she was a small child, she has always felt that she is female, despite
being born with a male body. Plaintiff
describes herself as a “pre-operative transsexual.” She has been taking female
hormones that have changed her outward appearance in some ways; however, she
retains her male genitalia. In 1999 she changed her name from Michael Etsitty
to Krystal Sandoval Etsitty. She officially changed her Utah driver’s license
designation from male to female.
In October 2001,
Plaintiff accepted a job working as an operator for UTA. After successfully
completing a six-week training course, she was assigned to a position as an
extra-board operator, as are all new operators. Extra-board operators fill in
for regular operators who are on vacation or sick, but they are not assigned a
permanent route. Plaintiff was a probationary employee, subject to increased
scrutiny and termination at will. At the time she applied for her job with UTA and throughout the
training period, Plaintiff dressed as a man and used the men’s restroom.
UTA never received any
complaints from anyone about Plaintiff’s performance, appearance, restroom
usage, or anything else. She was never disciplined, and her immediate
supervisor felt that she was a good bus operator.
Shortly after she was hired,
Plaintiff told her supervisor, Pat Chatterton, that she was transsexual and
that she would be appearing more traditionally female at work. Betty Shirley,
manager of operations, heard a rumor about a man dressing like a woman. When
she asked Chatterton about the rumor, he told her that “Mike,” an operator on
his team was going through a sex change. Ms. Shirley, not knowing how far along
in the sex change process Plaintiff had gone, was concerned over which
restrooms (male or female) Plaintiff would use. Ms. Shirley contacted Bruce
Cardon in Human Resources, and they decided they needed to meet with Plaintiff
to determine her status. Ms. Shirley expressed concern about Plaintiff using
female restrooms if she had male genitalia.
Ms. Shirley and
Mr. Cardon met with Plaintiff and asked her what her status was with regards to
the sex change process. Plaintiff confirmed that she was taking hormones, but
had not yet had any kind of sex reassignment surgery, so she continued to have
male genitals. Ms. Shirley and Mr. Cardon expressed concern about potential UTA
liability based on complaints that may result from Plaintiff using a female
restroom, whether in a UTA facility or out in the field. They were also
concerned that Plaintiff might switch back and forth between male and female
restrooms. Also, they both understood, based on their conversation with Plaintiff,
that she had some kind of written direction that required that she use female
restrooms.
UTA operators use public
restrooms along the route when necessary. UTA has arranged with certain
businesses to allow bus operators to use their restrooms, but permission can be
withdrawn. Ms. Shirley felt that it would be impractical to arrange for
a unisex restroom for one operator, particularly a new operator, because new
operators always start on the extra board and stay there for an extended time,
usually a few years. Extra board operators drive a different route virtually
every day, and special arrangements would have to be made on a daily basis or
for every route that UTA runs.
Plaintiff admits
that Ms. Shirley and Mr. Cardon made it clear that they were concerned about
potential liability from co-workers, customers, and the general public as a
result of Plaintiff, a biological male, using female restrooms.
Plaintiff also admits that she
was never teased or treated disrespectfully during her employment at UTA. No
one at UTA criticized her for being effeminate or made any remarks critical of
transsexuals. Although Plaintiff said that she suffered emotional distress from
being terminated, she said that the termination was not carried out in a
disrespectful or hurtful manner, and that both Ms. Shirley and Mr. Cardon
seemed sincerely concerned about the restroom issue.
Finally, Ms.
Shirley indicated on the termination record that Plaintiff was eligible for
rehire after completion of “his surgery (transformation),” when he no longer
had male genitalia.
III. Standard
of Review
Under Fed. R.
Civ. P. 56, summary judgment is proper only when the pleadings, affidavits,
depositions or admissions establish there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of
law. The burden of establishing the
nonexistence of a genuine issue of material fact is on the moving party. n1
E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548
(1986). When summary judgment is sought, the movant bears the initial
responsibility of informing the court of the basis for its motion and identifying
those portions of the record and affidavits, if any, it believes demonstrate
the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
In considering
a motion for summary judgment, the court must “view all facts and any reasonable
inferences that might be drawn from them in the light most favorable to the
nonmoving party and determine whether there exists a genuine issue of material
fact and whether the moving party is entitled to judgment as a matter of law.”
Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567 (10th Cir. 1994). An issue
of material fact is genuine if a “reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
The court has
determined, after a careful study of all the pleadings, that there are no
genuine issues of material fact in this case.
All that remains is to determine which party is entitled to judgment as
a matter of law. This is a case of first impression in the Tenth Circuit.
IV. Legal
Analysis
The question of
how Title VII’s prohibition against discrimination “because of ... sex” applies
to transsexuals is a complex one. Every federal court that has dealt directly
with this issue has held that “Title VII does not prohibit discrimination based
on an individual’s transsexualism.” Johnson v. Fresh Mark, Inc., 337 F.Supp.2d
996, 999 (N.D. Ohio 2003), aff’d, 98 Fed. Appx. 461, 2004 WL 1166553 (6th Cir.
May 18, 2004), citing Ulane v. Eastern Airlines, Inc. 742 F.2d 1081 (7th Cir.
1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982).
Defendants argue that under the
Ulane line of cases, which based their analysis on plain language and
Congressional intent, transsexuality is not covered under Title VII and
therefore Plaintiff is not entitled to relief. Plaintiff, on the other hand,
argues that Ulane does not apply because she is not alleging discrimination
based on transsexuality per se, but rather she asserts that UTA engaged in “sexual
stereotyping” which is prohibited by Price Waterhouse v. Hopkins, 490
U.S. 228, 104 L. Ed. 2d 268, 109 S.Ct. 1775 (1989). There is currently a great
deal of tension between Ulane and Price Waterhouse on the issue of whether
Title VII applies to transsexuals.
A. Transsexuals are clearly not a protected class under
Title VII.
Although Title
VII is a remedial statute, which should be liberally construed, this court
agrees with the reasoning of the Ulane court, that our responsibility is “to interpret
this congressional legislation and determine what Congress intended when it
decided to outlaw discrimination based on sex.” Ulane, at 1084. This court will
not expand the application of this statute beyond the clear intent of Congress,
absent a mandate from Congress to do so. The Ulane court, noting that in
statutory construction, words should be given their “ordinary common meaning,”
said that the plain meaning of the statute “implies that it is unlawful to
discriminate against women because they are women and against men because they
are men.” Id at 1085. The court continued that there is nothing in the statute
to indicate that it should apply to “a person who has a sexual identity
disorder, i.e., a person who was born with a male body who believes himself
female....” Id.
Since the decision in the Ulane
case, members of Congress have repeatedly tried to amend Title VII to prohibit
discrimination based on sexual orientation, and all of these attempts have
failed. The court in Oiler v. Winn-Dixie Louisiana, Inc., 2002 U.S.
Dist. Lexis 17417, 2002 WL 31098541 *4 n. 53 (E.D.La. Sept. 16, 2002) (listing
proposed bills), noted that from 1981 through 2001, thirty-one proposed bills
were introduced in the United States Senate and the House of Representatives
which attempted to amend Title VII to prohibit employment discrimination on the
basis of affectional or sexual orientation. None of them passed. The rejection
of these proposed amendments indicates that Congress intended the phrase in
Title VII prohibiting discrimination on the basis of sex to be narrowly
interpreted. A narrow interpretation would exclude protection for transsexuals. This court agrees with the
rationale of the Ulane court when it stated as follows:
In
our view, to include transsexuals within the reach of Title VII far exceeds
mere statutory interpretation. Congress had a narrow view of sex in mind when
it passed the Civil Rights Act, and it has rejected subsequent attempts to
broaden the scope of its original interpretation. For us to now hold that Title
VII protects transsexuals would take us out of the realm of interpreting and
reviewing and into the realm of legislating.
... If Congress believes that transsexuals should
enjoy the protection of Title VII, it may so provide. Until that time, however,
we decline in behalf of the Congress to judicially expand the definition of sex
as used in Title VII beyond its common and traditional interpretation.
...If the term “sex” as it is used in Title VII is to
mean more than biological male or biological female, the new definition must
come from Congress.
B. The Price Waterhouse prohibition against sex
stereotyping should not be applied to transsexuals.
Even though
Congress clearly did not include transsexuals as a protected class under Title
VII, some transsexual employees have recently argued, based on Price Waterhouse
v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), that they
can nevertheless state a Title VII claim if they allege that they were
discriminated against because they failed to conform to sex stereotypes
(including stereotypical norms about dress and appearance). See, e.g. Smith v.
City of Salem, 369 F.3d 912 (6th Cir. 2004). In Price Waterhouse, a female
senior manager was denied partnership in the firm because she was considered
too “macho” for a woman. She was told that she would improve her chances for
partnership if she were to take “a course at charm school,” “walk more
femininely, talk more femininely, dress more femininely, wear make-up, have her
hair styled, and wear jewelry.” Price Waterhouse, at 235. The Supreme Court
held “in the context of sex stereotyping, an employer who acts on the basis of
a belief that a woman cannot be aggressive, or that she must not be, has acted
on the basis of gender.” Id. at 250.
The Sixth Circuit, in two recent
cases, has applied the Price Waterhouse rationale to transsexuals, and has
concluded that Ulane and its progeny are no longer good law. In Smith v. City
of Salem, 378 F.3d 566 (2004), a firefighter began treatment for his Gender
Identity Disorder. When he began “expressing a more feminine appearance” at
work, as prescribed by his doctors, his co-workers began commenting that his
appearance and mannerisms were not masculine enough. The City of Salem had
Smith take three separate psychological exams and later suspended him. The
Sixth Circuit upheld Smith’s claim of gender discrimination, stating, “Discrimination
against a plaintiff who is transsexual - and therefore fails to act and/or
identify with his or her gender - is no different from the discrimination
directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical
terms, did not act like a woman.”
This court disagrees. There is a
huge difference between a woman who does not behave as femininely as her employer
thinks she should, and a man who is attempting to change his sex and appearance
to be a woman. Such drastic action cannot be fairly characterized as a
mere failure to conform to stereotypes. An authoritative treatise on Gender
Identity Disorder states the following:
Gender Identity Disorder can be distinguished from
simple nonconformity to stereotypical sex role behavior by the extent and
pervasiveness of the cross-gender wishes, interests, and activities. This
disorder is not meant to describe a child’s nonconformity to stereotypic
sex-role behavior as, for example, in “tomboyishness” in girls or “sissyish”
behavior in boys. Rather, it represents a profound disturbance of the
individual’s sense of identity with regard to maleness or femaleness.
American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, 564 (4th ed. 1994). Clearly, the
medical community does not equate transsexualism with a mere failure to conform
to stereotypes.
It should also be noted that courts have
continued, even after Price Waterhouse, to follow the narrow Ulane approach
that the term “sex” in Title VII refers to biological sex and nothing more. “Long
after Price Waterhouse was decided, courts have continued to hold that
discrimination on the basis of sexual preference or orientation is not
discrimination based on a person’s ‘sex.’“ Oiler, 2002 U.S. Dist. Lexis 17417,
at *5 n. 59 (collecting cases). In Spearman v. Ford Motor Co., 231 F.3d 1080
(7th Cir. 2000), also decided after Price Waterhouse, the Seventh Circuit
followed the Ulane court’s reasoning that “Congress intended the term ‘sex’ to
mean ‘biological male or biological female,’ and not one’s sexuality or sexual
orientation. “ The court went on to state that “harassment based solely upon a
person’s sexual preference or orientation (and not on one’s sex) is not an
unlawful employment practice under Title VII. Id. at 1084.
Furthermore,
Defendants have noted that because it is undisputed that transsexuals as such
are not protected under Title VII, the same workplace rules that apply to
transsexuals would be applicable to non-transsexuals as well. Taken to the extreme, the theory
in the Smith case would mean that if an employer cannot bar a transsexual male
from dressing and appearing as a woman (because it would be sex stereotyping
under Price Waterhouse), then a non-transsexual male must also be allowed to
dress and appear as a woman. In fact, if something as drastic as a man’s
attempt to dress and appear as a woman is simply a failure to conform to the
male stereotype, and nothing more, then there is no social custom or practice
associated with a particular sex that is not a stereotype. And if that is the
case, then any male employee could dress as a woman, appear and act as a woman,
and use the women’s restrooms, showers and locker rooms, and any attempt by the
employer to prohibit such behavior would constitute sex stereotyping in
violation of Title VII. Price Waterhouse did not go that far.
This complete
rejection of sex-related conventions was never contemplated by the drafters of
Title VII and is not required by the language of the statute or the Supreme
Court opinion in Price Waterhouse. Even in Nichols v. Azteca Rest. Ent., Inc.,
256 F.3d 864 (9th Cir. 2001), which Plaintiff cites for the proposition that
harassment “based upon the perception that [the plaintiff] is effeminate” is
discrimination because of sex in violation of Title VII, the court stated, “We
do not imply that all gender-based distinctions are actionable under Title VII.
For example, our decision does not imply that there is any violation of Title
VII occasioned by reasonable regulations that require male and female employees
to conform to different dress and grooming standards.” Id at 875, n. 7.
C. In any case, Price Waterhouse does not apply here,
because Plaintiff was not fired for failure to conform to a particular gender
stereotype.
Even if Price
Waterhouse were construed to apply in some situations to transsexuals, it
clearly does not apply here. There is no evidence that Plaintiff was fired
because she failed to conform her appearance to a particular gender stereotype.
Plaintiff admits that she was treated respectfully, and that she was never
criticized or ridiculed for her appearance. Ms. Shirley and Mr. Cardon both
expressed concern from the beginning about what restroom Plaintiff would use,
and Plaintiff herself admitted that their concern seemed genuine. Ms. Shirley
explained that the reason she discharged Plaintiff was her concern that
Plaintiff’s expressed intent to use public women’s restrooms while working for
UTA could create some liability for the company. There is no evidence that the defendants required
Plaintiff’s appearance to conform to a particular gender stereotype, only that
they required her “to conform to the accepted principles established for
gender-distinct public restrooms.” Johnson v. Fresh Mark at 1000 . This
is a legitimate non-discriminatory reason for dismissing her.
It is also undisputed that Ms.
Shirley stated on Plaintiff’s termination record that Plaintiff was eligible
for rehire after completion of “his surgery (transformation),” when he no
longer had male genitalia. This also demonstrates that Ms. Shirley had no
animosity toward Plaintiff because of her status as a transsexual, or because
she did not act or appear in conformance with stereoptypical notions about how
males should behave or appear.
Plaintiff has
argued at length that the restroom usage concern must be pretextual because no
one had complained about Plaintiff’s restroom usage, and Ms. Shirley had not
checked into possible alternatives. However, as Defendants point out, Ms.
Shirley’s failure to conduct a survey to confirm whether her concern was
legitimate in no way establishes that this was not her actual concern. To show
pretext, the plaintiff must call into question the honesty or good faith of Ms.
Shirley’s expression of concern. See Exum v. United States Olympic Committee,
389 F.3d 1130, 1137-38 (10th Cir. 2004) (“It is not enough that a fact finder
could disagree with the employer’s assessment. The relevant inquiry is not
whether [the defendant’s] proffered reasons were wise, fair or correct, but
whether [it] honestly believed those reasons and acted in good faith upon those
beliefs.”).
Defendants also points out, and
the court agrees, that no study is necessary to conclude that many women would
be upset, embarrassed, and even concerned for their safety if a man used the
public restroom designated exclusively for women. Concerns about
privacy, safety and propriety are the reason that gender specific restrooms are
universally accepted in our society. Even Plaintiff stated in her deposition
that it would be inappropriate for a man to use a women’s restroom. Plaintiff,
although in the process of changing her sex, still had male genitalia, and
there is no evidence that Ms. Shirley’s stated concern about restroom usage was
pretext for discrimination.
Plaintiff also
claims as evidence of pretext, the differential treatment of similarly-situated
employees. The court finds no merit to this argument. Men who were reprimanded
rather than discharged for leaving restrooms messy were in no way similarly
situated to Plaintiff.
D. Defendant is also entitled to summary judgment on
Plaintiff’s Equal Protection claims under 42 U.S.C. § 1983.
The elements of a
plaintiff’s case for employment discrimination are the same whether the case is
brought under Title VII or under 42 U.S.C. § 1983. Therefore, Defendants are
entitled to summary judgment on Plaintiff’s claims under § 1983 against both
UTA and Betty Shirley for the same reasons discussed above.
Conclusion
This court does
not condone discrimination in any form, and is sympathetic toward Ms. Etsitty.
However, because of the current status of the law, and for the reasons stated
above, Plaintiff’s Motion for a Partial Summary Judgment is denied, and
Defendants’ Motion for Summary Judgment is granted.
So Ordered.
Dated this 24th day of June, 2005.
By the Court:
David Sam
Senior Judge
United
States District Court
Note:
1. Whether a fact is material is determined by looking to
relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).